F 74 




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Copy 


1 



\ 



TRIAL 



MARSHALL AND ROSS 



BARN-BURNING. 



\ ^ BRIEF EXPOSURE 

OF A SYSTEMATIC ATTEMPT 

TO MISLEAD THE PUBLIC MIND, 

AND TO 

CREATE A FALSE SYMPATHY 

IN 

BEHALF OF CONVICTED INCENDIARIES. 



BY 
A LOOKER-ON IN VIENNA. 



18 5 9 



c 



F7^ 



[On the night of the 11th of February, 1858, between the hours of 10 1-2 and 12, 
P. JI., (the exact time was a disputed point,) two barns were consumed by fire, at 
tlie Eastern Point Farm, in Gloucester, Essex Co., — an estate owned and occupied by 
Thomas Niles, Esq. The barns were half a mile apart, one being within a few rods of 
the dwelling house of Mr. Niles, the other down by the Light House. Mr. Niles was 
absent from home at the time. In the house were his wife, an infant child, an aged 
aunt, one female domestic, and three farm laborers. The burning of the two barns 
was simultaneous, and no question was ever raised but that the fires wereincendiary. 
The buildings, with all their contents, — two yoke of oxen, three cows, two valuable 
horses, several carriages, sleighs, harnesses, &c., twenty tons of hay, a large quantity 
of grain, and other valuable property, were burned to ashes. At first, it seemed 
certain that the dwelling house would also be consumed, but a sudden change of the 
wind turned the current of the flames, and the house was saved. The night in 
question was one of the coldest of the year, and the buildings burned were several 
miles distaut from any point from which aid could come.] 

/4> 



:M 



4^ 

^^ A BRIEF EXPOSURE 

OF A SYSTEMATIC ATTEMPT 
TO nVCISLE-A-ID TPIE IPTJBLIO nVEUSTOD. 

AND TO 

CREATE A FALSE SYMPATHY 

IN BEHALF OF 

CONVICTED INCENDIARIES. 



In the Gloucester Telegraph, Boston Traveller and Journal, 
and the Salem Advocate, articles in relation to the late trial of 
Marshall and Ross for barn-burning, have recently appeared, 
purporting to be expressions of public sentiment, but which 
look very much like so many attempts to manufacture this 
somewhat equivocal commodity, and this too, in vulgar phrase, 
out of the "whole cloth." Having been present, during 
almost the whole of this protracted investigation, and having, 
both before and since the rendering of the verict, conversed 
with many persons whose judgment in the premises is entitled 
to respect, I have thought it worth while to compare the 
impressions I had received and the opinions I had formed, 
with some of the statements contained in the aforesaid articles. 
The result of this comparison I propose to submit, as briefly 
as I may, to the readers of the following pages, premising that 
never having had, professionally, any connection whatever 
with the case, either as counsel, witness, adviser or otherwise, 
1 watched the proceedings, so far as I am aware, with no 
other interest in the result than is common to all who have 
any claim to the character of good citizens. 

The principal points of comparison, suggested by a perusal 
of the articles referred to, are— the verdict, and the surprise 
occasioned by its rendition— the character, especially as 
witnesses, of Payne and Mary Mansfield — and the impression 
made by the evidence as given on the stand, and also, as 
collated and reviewed in the closing argument of the District 
Attorney. 

I. The verdict, and the surprise occasioned by its 
RENDITION. And here, I would apprize the reader that the cita- 
tions which I may have occasion to make, will, for the sake of 



brevity, for the most part, at least, be unaccompanied by a 
specification of the paper or papers in which they are found ; 
and the italicizing may all be taken to be mine. 

Of the verdict, and the suprise it occasioned, these writers 
say — " The verdict was wholly unlooked for. The jury 
were out thirty-six hours, and they are denounced for 
their verdict. The verdict was against all the evidence, 
astonished the prosecuting attorney, and amazed the whole bar 
present." " The verdict has outraged every sense of justice 
in the community. The jury cannot escape suspicions which 
every honorable man ought to be eager to avoid." "Every- 
body — the friends as well as the opponents of Mr. Niles — are 
perfectly astonished that such a verdict should have been ren- 
dered on so slight a chain of evide?ice" "After a discussion 
of thirty-six hours the jury returned a verdict of guilty, much 
to the surprise of all who listened to the trial. The verdict 
created intense excitement here, and, whether it was just or 
unjust, your readers may judge from the fact that the case 
has been carried up for a new trial on exceptions." (A pretty 
glaring non-sequitur, even had the fact been as alleged, as it 
was not, for no hearing on the exceptions was had until 
several days after the publication of the article last cited, 
when they were "all disallowed because not conformable 
to truth.") 

To enable the reader to appreciate more fully the correct- 
ness of these representations of the writers just cited, it should 
be stated that, as was perfectly well known to them, the late 
trial at Salem was not the first judicial investigation of the 
subject. Immediately after the burning of the barns, a fire 
inquest was held, composed of a jury of intelligent, honest 
and capable men, presided over by a magistrate of the stern- 
est integrity, of great intellectual ability and high legal 
attainment. The verdict of that jury charged Marshall and 
Ross. Complaints were made before a police court, presided 
over by a justice of large experience, and they made a full 
defence before him, and that intelligent magistrate held them 
to answer. The case then went before the grand jury, who 
thoroughly investigated it, and returned a true bill against 
these parties. The cause then came on to be tried by a jury, 
sworn to try the issue according to the evidence, and, in less 
than three hours after retiring to their room, ten of that jury 
desired to return a verdict of guilty, one for a while hesitated, 
but eventually was ready to agree with his ten fellow jurors, 



while the other, who was a townsman of Marshall, and, it is 
reported, liad worked for or with him for some time between 
the fire and tlie trial, stood out for an acquittal. The cause 
was committed to them late on Saturday, and the jury were 
early discharged to avoid encroachment on the Sabbath. Such 
had been the history of tiiis case up to the time of empanel- 
ling the jury for still another trial of these defendants. All 
these stages had been passed, and with the results above 
indicated, and yet the authors of the extracts above cited 
would have us believe, that they only reflect the universal 
public sentiment, when they represent that all this had been 
done, and the second jury had tried the case through more 
than a week's time, returning a verdict of guilty — and all 
without evidence enough against the accused to justify even 
a suspicion of their guilt ! But I have now to do with only 
the last trial, and the verdict in which it resulted. 

And had these professed reflectors of public opinion 
asserted only, that the first emotion excited by the rendition of 
the verdict, and by the report of it, as it went forth on the 
wings of the wind, was, on the part of those cognizant of 
the facts in the case, to a very great extent, that of surprise, 
and had they then proceeded to unfold the real cause of that 
surprise, (which " lack of service " I propose presently to 
supply,) there would have been no occasion for correcting 
the utterly false impressions, which their misrepresentations 
on this point are adapted — not to say intended — to make. 
Why, if these writers are to be believed, "the verdict" was 
not only " unlooked for," but such as to cause " the jury," to 
be " denounced." It not only "astonished the prosecut- 
ing attorney, and amazed the whole bar present," but " out- 
raged every sense of justice in the community," and "every- 
body is astonished that such a verdict should be rendered 
on so slight a chain of evidence." 

Now I beg leave to commend to the authors of these sufii- 
ciently harsh and severe utterances of an alleged public senti- 
ment, and to their readers, a commentary on their truthful- 
ness^ furnished by certain proceedings recently had in that 
same temple of justice, which, as these writers would have 
us believe, had been, in the opinion of everybody, so basely 
desecrated by the rendering of the verdict in question. At 
an adjourned session of the court, on the 14th of March, 
the convicted defendants, Marshall and Ross, appeared, and 
by their counsel moved that this astounding verdict be set 



aside, and a new trial granted. Two of the reasons offered 
in support of the motion, and enforced at length hy all the 
learning and eloquence of the distinguished counsel for the 
defence, were — " First : Because the verdict was against the 
evidence, and the weight of the evidence." And — " Second : 
Because the jury did not render a true verdict, according to 
the law and the evidence given them, but rendered a false 
verdict." What an opportunity is now afforded the District 
Attorney, who was so " astonished " at the verdict, to relieve 
himself at once and effectually, from any share in that damn- 
ing reproach, with which public opinion was already visit- 
ing all who had any agency in procuring the conviction of 
two defendants, who, as their counsel affirmed " the Govern- 
ment having wholly failed of provuig them guilty, had," as 
a work of supererogation, " proved, to a moral certainty, that 
they were innocent." And who, of all those present on this 
occasion, and sympathizmg with the universal public senti- 
ment, but must have been, not astonished merely, but con- 
founded and horror-struck, when, instead of virtually second- 
ing the pending motion, or, at least, withholding all opposi- 
tion, as, in consideration of that astonishment at the verdict, 
from which he could hardly yet have recovered, and his pro- 
verbial kindness of heart, he might have been expected to do, 
the District Attorney not only replied, with great force and 
effect, to all that had been urged on the other side, but, de- 
parting from his usual course in such cases, calmly and em- 
phatically said to the Court — " Because of certain statements 
that have been made to create public sentiment, I feel called 
upon to say, that I have never been engaged in a case, where 
I have had a more thorough and abiding conviction of the 
guilt of the parties accused, than in this case." More than 
all, when, at last, other points having been disposed of, the 
whole matter rested in the discretion of the Court, and when 
the earnest appeal to that discretion, by the defendants' coun- 
sel, had been concluded, and when, by a single word from 
the Bench, the loud and clamorous demand of an over-awing 
public sentiment could be fully met, and, at the same time, 
the tender mercies of the Court largely gratified, who, of 
those in attendance at this critical juncture, must not have 
been overwhelmed with disappointment, if not chagrin, as 
the learned, able and most upright judge, who tried the cause, 
and as the counsel for the defence, echoing the unanimous 
ppinion of all attendants upon the trial, had just declared — 



" with entire impartiality ^^^ and who must be supposed to 
have understood its merits — promptly and laconically thus 
disposed of the matter submitted to his discretion : — '• I see no 
cause for interfering with the verdict in this case, and it is 
unnecessary for me to say more than that the motion is over- 
ruled ! " And yet, being present, and somewhat observant 
of those around me, I did not discover, at the moment of 
this announcement from the Court, any indications, even in 
the countenances of the learned counsel whose motion had 
been thus summarily denied, that confident expectations had 
thus been " cut off,'' and sanguine hopes blasted. On the 
contrary, from what I observed at the time and have since 
heard, I infer that the result of the hearing in this case, was 
just what was almost universally expected, as I know it is 
most extensively believed to be, in perfect accordance with 
the imperative claims of impartial justice. And how clearly 
and unmistakably does this whole procedure give the lie di- 
rect, to those representations of public sentiment, which the 
writers above cited have had the effrontery to fabricate and 
publish to the world ! 

But enough, and more than enough, as to public sentiment 
respecting the character of the verdict in this case. That 
its rendition excited general surprise, in which the District 
Attorney may have shared, is most true. Equally true is it, 
that for this surprise there was an obvious and all-sufficient 
cause, as will appear from the following statement of facts. 
We have already seen, that, on the former trial of this cause, 
at Lawrence, a verdict of guilty would have been reached, 
and this after only about three hours of deliberation, but for 
the opposition of a single juror — a neighbor and acquaintance 
of one of the defendants. And as, at the late trial, the jury 
was about to be empanelled, one of their number residing at 
Eastern Point, and very near to a brother of one of the 
defendants, who, it was supposed, must, of necessity, be 
more or less biased, and who was believed to have expressed 
an opinion as to the merits of the case, to sundry persons, 
and, among others, to some of his fellow jurors, was chal- 
lenged by the District Attorney. The usual oath having 
been administered, and the Court having propounded the 
interrogatories prescribed by the Statute, the Attorney for 
the Government questioned the juror still further, and some- 
what closely, as to conversation with others, and the expression 
of an opinion in relation to the case about to be tried. Having 



8 

iief^atived every idea of partiality, bias, unfairness, or of 
opinion expressed or formed, presupposed by the inquiries 
propounded in this examination, and this in a maimer c\em\y 
indicative of a settled purpose to retain a position from whose 
responsibilities any fair-minded man, similarly situated, would, 
it might well be supposed, of his own motion, have, most 
earnestly, prayed to be excused, this juror was allowed to 
retain his seat upon the panel. From this moment it was 
generally believed that the defendants were quite secure 
against conviction by this jury, however clear, and absolutely 
conclusive, might be the proof of their guilt. When, there- 
fore, on the morning of the third day of their deliberations, 
the jury came into court, not — as was well known — of their 
own motion, but in obedience to a message from the presiding 
judge, and, especially, as they were known to have returned 
from breakfast only half an hour previously, in the care of 
the officer who had them in charge, and, of course, without 
having agreed, it was natural to conclude that the eleven 
refractory and obstinate jurors, who, it is now well under- 
stood, within twelve hours after retiring to their room, saw 
" eye to eye," in the matter committed to them, were still 
holding out against their unprejudiced associate, who had 
sworn, as no one of them, in the same circumstances, would 
have dared to do, to his perfect competency to judge and 
decide, impartially and truly, between the Commonwealth and 
the prisoners at the bar! When, therefore, in answer to the 
inquiry of the Clerk, propounded with more than his accus- 
tomed impressiveness of tone and manner, "Mr. Foreman, 
have the jury agreed upon a verdict?" the foreman, with 
unfaltermg voice, replied — "they have," — while, undoubted- 
ly, almost all present were s/^rpmet/ by this announcement, — 
not an individual among them, from the judge on the bench 
to the prisoners at the bar, doubted, for a moment, that that 
verdict would be, as it was, — Guilty. I will only add, on 
this point, that " all the members of the bar present " on this 
occasion, were very few in number, and the oldest of these is 
believed to have expressed the sentiment of all his associates, 
who had heard the testimony, when, immediately on the 
retirement of the Judge, he exclaimed, — "A signal triumph 
of law and justice ! " 

II. The character — especially as witnesses — of Payne 
AND Mary Mansfield. In one of the journals above cited, they 
and their testimony are thus characterized. " The testimony 



9 

used by the government, is such as no honest party could use, 
or ought to use. I refer particularly to Mr. Payne and Miss 
Mansfield. Payne acknowledged himself to be a scamp, a con- 
spirator to burning, and Miss Mansfield showed herself to be 
what a regard to delicacy forbids me to name. No verdict can 
be pure when based upon such testimony." Again — it is " tes- 
timony coming from the vilest of the vile, unworthy to be 
listened to on the trial of mad dog." To any intelligent 
attendant upon the late trial, it must be quite obvious that 
the author of these unscrupulous denunciations of these wit- 
nesses, and of the government as well, is of that class so 
graphically described in a good Book, (with which, I fear, he 
is not very familiar,) as " desiring to be teachers of the law, 
understanding neither what they say, nor whereof they 
affirm.^'' Certain it is, that he is utterly devoid of that 
knowledge of the facts in this case, which is indispensable to 
a successful effort to enlighten others, but which, it must be 
conceded, is unnecessary, and might be decidedly inconvenient, 
to one who, like this writer, is obviously striving, for a sinister 
purpose, to manufacture a public sentiment, which could be 
created only by misrepresentation, and who doubtless acts 
upon the maxim, — 

" Where ignorance is bliss, 'twere folly to be wise." 

As to Payne, the first of the witnesses " particularly " 
referred to in the foregoing extract, he was not, as this writer 
represents, an accomplice. He had been the friend of Mar- 
shall and Ross, and a joint actor with them against Mr. Niles ; 
he was their confidant, and he and they had constantly 
planned and executed injuries to Mr. Niles and his property ; 
they confided their plans to him, and he was as ready as they 
to enter into all the schemes ; he was most forward, being but 
a boy of 18 or 19 years, and they older and maturer ; but he 
left and went to his father in West Cambridge, a fortnight 
before the fire, and in no sense was he an accomplice. But 
the District Attorney, knowing him to have been a joint actor 
with the defendants, when he was at Eastern Point, and 
willing to join with them in any guilty enterprise, and pos- 
sessing, what he thought was a guilty knowledge, with his 
characteristic liberality, said, that though he was not an 
accomplice, yet he was willing and desirous, that the jury 
should look upon him in that light ; that they should treat 
him, in their judgment of him, precisely as if he had been an 
accomplice, and not believe him at all unless they found him 



10 

so corroborated, as an accomplice, in the strictest sense of the 
word, should be corroborated ; that they should believe him, 
only so far as the facts proved independently of him, and 
his own appearance, manner of testifying, &c., &c., fully and 
entirely convinced their minds of his undoubted present 
truthfulness. 

But suppose Payne to have been, in all respects, as bad as 
this writer would make him, and an accomplice, as we have 
seen he was not, of the defendants in this case — what then ? 
Is the government to be charged with having " used testimony 
which no honest party could use, or ought to use," because 
such a man, having guilty knowledge of the perpetration of 
a crime like that of barn-burning, and who, being ready and 
willing to testify to what he knows, is not excluded from the 
witness stand, simply for the reason, that, by the perpetrators 
of this crime, he was believed to be, or, if you please, was, in 
fact, bad enough to be safely entrusted with the secret of their 
diabolical purposes ? Whence, ordinarily, I pray to know, but 
from just such sources, is the government to obtain any direct 
and positive proof as to the authors of such "deeds of dark- 
ness " as that of which these defendants stand convicted ? 
And yet, I think, I may safely challenge the records of the 
criminal jurisprudence of this Commonwealth, to furnish, I 
had almost said, a solitary case, of essentially the same 
character as the present, in which there was produced, on 
behalf of the government, so little evidence, for any cause, 
or in any degree, of a questionable character, and so much 
that was so entirely above suspicion. 

But where is the proof that Payne is the abandoned wretch 
that this writer represents him to be ? I venture to affirm, 
that, by every candid and impartial hearer of the whole 
testimony affecting his character, it will be conceded that its 
darkest shade — its worst feature — as developed during the late 
trial, was that imparted to it by his acknowledged companion- 
ship with Marshall and Ross. 

But it is with Payne as a witness, that we are specially 
concerned, and of him, in this capacity, I hesitate not to say, 
that if, in any witness, standing before the Court and Jury as 
an accomplice of parties on trial — these parties constantly 
looking him in the face — the marked appearance of childlike 
artlessness, entire frankness, quiet self-possession, and pro- 
priety of deportment generally, during an extended, and, in 
some portions of it, severe and searching examination, 



11 

flemanded a decidedly favorable judgment of his truthfulness, 
then was such a judgment in regard to Payne, which I heard 
uttered and reiterated, simultaneously and repeatedly, while 
he was on the stand, and affirmed by almost every one with 
whom 1 have since conversed on the matter, — a righteous 
judgment. But, in addition to the personal appearance of the 
witness, and in strong confirmation of the favorable impression 
thus made, we have such corroboration of his testimony, in 
several important particulars, as to satisfy any unprejudiced 
mind that, whatever else Payne may have been, — or may be 
now, he was, on this trial, anything rather than a false and 
perjured witness. Two examples of this corroboration must 
suffice. Payne swore to a conversation with Ross, some 
three weeks before the fire, in which the latter disclosed to 
him the fiendish purpose of burning the very barns that were 
consumed on the night of February 11th, and also, somewhat 
in detail, the plan of operations ; he also swore that shortly 
after this Marshall inquired of him if Ross had told him 
anything about burning the old hay ricks, and that at first he 
said he had not ; but that, after a moment's reflection on the 
implication, necessarily involved in this inquiry, of the privity 
of Marshall to the whole matter, he thought it safe to repeat 
the conversation, and did so. Mr. Kimball the jailer — an 
unwilling witness for the government — testified, that in 
conversation with Ross on a certain occasion, and in conse- 
quence of what the latter had said to him, he remarked, " If 
1 were in your place, and innocent of the crime, — I would not 
suffer for another's wrongdoing; " to which Ross replied, — 
"Mr. K\mhdM,I didriH do it, but I know about it.^^ Another 
witness — Dougherty, wholly unimpeached, whose occupa- 
tion at the time brought him, for a moment only, very near 
the parties engaged in this conversation, — swore that he 
distinctly heard Ross say, — '' / didn't set the fire, but I knov) 
all about it.'' 

A second, and, as 1 think, still more striking example of 
corroboration of Payne, is all that time and space will per- 
mit me to recite. Payne swore that, on being summoned 
before the fire inquest, being then friendly to Marshall and 
Ross, and, with them, hostile to Mr. Niles, he went to 
Gloucester the day before he was required to ; that he imme- 
diately sought out Marshall and Ross ; spent the evening 
with them ; that, the next morning, he and Ross, having seen 
Mary Mansfield go towards the place of examination, agreed 



12 

together, to go across the harbor on the ice, and thus get 
ahead of her, to complain of her before a magistrate, that she 
might be arrested, and thus- prevented from appearing as a 
witness before the inquest. And further, that while crossing 
the ice together they talked of the fire, and Ross told him 
that the thing was done in the manner he had previously 
communicated to him. Ross, too, was a witness before the 
inquest, and though he at first denied, yet he afterwards ad- 
mitted that he and Payne did go across the ice for the pur- 
pose of getting the woman arrested, to prevent her being a 
witness, and that, on the ice, they did talk about the fire, but, 
though examined immediately after, on the same day, he 
could not remember what was said about it ; and the mag- 
istrate confirmed them both, in the statement that they 
attempted to get the woman arrested, but he refused to issue 
a warrant. It may, perhaps, be said of this, as was said of 
similar testimony in another case, that it is but '■'■ circiinistan- 
tial stuff,'''' and now, too, as then, it may be replied — " it is 
not such s luff as dreams are made of." 

Another of " the vilest of the vile,'^ according to the writer 
last cited, is Mary Mansfield, of whom he says, that she 
" showed herself to be what a regard to decencAj forbids me to 
name.^^ To any one capable of discerning and appreciating 
true dignity of character, self-respect, and high moral excel- 
lence in woman, and who either has the honor of a personal 
acquaintance with Mrs. Niles, or saw and heard her on the 
witness-stand during the late trial — to such an one, it were 
enough to say, in refutation of this vile slander, that this same 
Mary Mansfield has been, for nearly two years, and is still, 
an inmate of that lady's family ; and I venture to add, that, 
so long as she continues such, she will need no other, as she 
certainly could have no better, protection against such foul- 
mouthed imputations, as, by this writer, are covertly, and 
therefore the more basely, attempted to be fastened on her. 

Undoubtedly, this woman has peculiarities and eccentrici- 
ties of character, which, for aught I know, may have exhib- 
ited themselves, occasionally, in an luibecoming and improper 
use of that "little member," which we have high authority 
for saying, " /io man,'" and, a fortiori, no woman, "hath 
tamed," or " can tame." Nor will she, perhaps, be likely to 
be very soon accounted " better than the mighty," on the 
ground that she "^'s slow to anger " — or " better than he that 
taketh a city," because she ^^ ruleth her spirit^ But to 



13 

question the intentional truth of her statements, nnder oath, 
during a protracted examination of several hours, in the face 
of the general consistency of those statements, as a whole — 
the character of the discrepancies, when any could be detect- 
ed — the abundant corroboration of her testimony, in its more 
important particulars, which almost no witness ever needed 
less, and, more than all, against those most reliable indications 
of truthfulness in a witness, so strikingly manifest in her, as 
to be " known and read of all men " — the open, frank and 
honest face, the natural posture, promptness in replying to 
inquiries adapted to " entangle " her, and her whole deport- 
ment on the stand, — I say, against all this, be her eccentrici- 
ties what they may, to call thevntness^ Mary Mansfield, false, 
perjured, is not only to do her gross injustice, and to stultify 
one's self, but to insult the understanding of every man, 
who, having seen and heard heron the stand, is asked to give 
credit, for a moment, to the monstrous absurdity. 

The character, disposition, heart of this woman, may be 
judged of, somewhat, by her conduct at the time of the fire. 
Roused from her sleep, by the startling cry that the barn was 
on fire, her first thought, as she sprung from her bed, was one 
of mercy and humanity — in her own language, " to try and 
save the poor dumb beasts." Dressed, or rather undressed, as 
she was, and she had even less than the ordinary night ap- 
parel of a female, she rushed out, in that terrible winter night, 
and endeavored to get from the barn the horses, oxen and 
cows. But the fire had progressed too far, and a sheet of 
living flame barred all ingress or egress at the doors. Thus 
prevented from fulfilling the dictates of kindly pity, the 
sense of duty to her employer prompted her to try and save 
some little of the property which the fire was fast devouring. 
From the barn she went to the carriage house adjoining. 
There all alone she struggled, succeeded in drawing out one 
valuable carriage, and was in the act of removing another, 
when the flames, which had been all the while raging around 
her, at last actually reached her person, and, blistering her 
almost from head to foot, drove her, despairingly, from her 
work of love and duty. 

When Mary Mansfield described upon the stand, with a 
lone and in language which carried conviction to every heart, 
the occurrences of that night, and her own conduct, many 
eyes, unused to weep, were moistened with tears, and there 
was no man, in all that crowded court-room, who could have 



14 

stood up and dared to doubt that the witness was the personi- 
fication of honesty and truth. And yet this is the woman 
whom the last-cited, reckless libeller calls by such foul 
names ! 

III. The impressions made by the testimony as given on 

THE STAND, AND ALSO, AS COLLATED AND REVIEWED IN THE CLOSING 

ARGUMENT OF THE DISTRICT ATTORNEY. By oue of the manu- 
facturers of public opinion already cited, it is somewhat 
extravagantly said — " The verdict was against all the evi- 
dence;" — and by another, "Everybody is astonished, that 
such a verdict should have been rendered on so slight a cJiain 
of evide?ice.^' Let us see what only a few of the links, 
constituting this " slight chain," consisted of, as presented by 
the government's case. 

Marshall and Ross had been inmates of Mr. Niles' house 
for a year before the fire, the former as tenant, and the latter 
as his hired man. For months before the fire, there had been 
hard feelings between them and Mr. Niles, which had grown 
into what was shown to have been absolute malice, if not 
hatred. No stronger language than that in which, at 
various times, they expressed their malignity, could be con- 
ceived. Early in February, referees jointly, agreed upon by 
the parties, had determined that all the property in the barns 
belonged to Mr. Niles, and not to Marshall, who had claimed 
the whole, or part of it. On the Saturday before the fire, the 
defendants had removed from the premises, to a house less 
than a mile distant. On Tuesday, the decision of the referees 
was made known to Marshall, and, on Tlnu'sday night, at a 
time when the owner was away, (a fact of which Marshall 
acknowledges himself cognizant,) this deed was done ! 

Now join this link in the chain, to the further fact that, 
within a month before the fire, Ross threatened to do this 
precise thing, as soon as they had got away from the house, 
and that Marshall had given unmistakable proof of his 
knowledge of this threat and this purpose, by making inquiry 
about it, of the person to whom it had been disclosed. Add 
to this the fact that it was admitted, by the defendants, (both 
of them) that they slept together that night, one of tliem 
saying it was the only occasion of the kind, and the other 
that it was the first, but not the last, time. And the further 
fact that they gave different and inconsistent reasons for this 
remarkable occurrence, and were consistent only in averring 
that it was without previous concert. 



15 

Still another specimen of the evidence so cruelly set at 
naught by this verdict ! When Ross was on trial before the 
magistrate, at Gloucester, Marshall was called as a witness in 
his favor, and made oath, as he alone could do, to a perfect 
and complete alibi. He was then cross-examined, and, as 
might well have been expected, this examination was at first, 
for°the purpose of testing his credit, directed to other matters 
than those to which he had testified in chief. He then ad- 
mitted that he had not only suspected, but had accused Mr. 
Niles of burning those barns, or of being accessory to the 
burning, and that he had heard the same suspicions expressed 
by other very respectable gentlemen whom he named. Upon 
being pressed, he acknowledged that, in his own heart, he did 
not suspect, and never had suspected, Mr. Niles, whom he knew 
to have been absent, and whose wife and infant child were 
exposed to the fury of the flames on that terrible night. The 
next inquiry was inevitable— why had he been so wicked, 
so cruel as to blast, with the breath of such a foul calumny, 
the reputation of Mr. Niles, all the time believing him entirely 
innocent of the crime with which he charged him ? It was 
a question to which there could be no answer, and the 
witness faltered, /am/e(^ and fell into the arms of a bystander, 
as it was pressed upon him ! Recovering in a short time, the 
examination proceeded and was concluded. But that question 
was never answered. Was the verdict '^ agamst all the 

evidence V -, , • 

But that was not all. On a subsequent day, this same 
Marshall was recalled, at his own request, to correct his state- 
ment. And what was his correction ? What but this— that 
he had been utterly and entirely unconscious from the time 
the cross-examination commenced till after he reached his 
home— that he had no knowledge of his former statements— 
that he never suspected and never accused Mr. Niles, and 
never heard any one else say or intimate that Mr. Niles was 
auilty of the crime. All these facts were shown at the trial, 
and it was demonstrated, so far as human testimony can dem- 
onstrate anything, by the evidence of several of the specta- 
tors of the scene, including the magistrate, that the whole 
statement was false, that the witness had not been unconscious, 
except at the moment of his fainting, and that, to all appear- 
ance he had had the use of all his senses, when testifying. 

These are but a lew of the links in the " slight chain by 
which these defendants were bound, and by no means liu- 



16 

nish a just view of the strength of the government's case. 
They are mentioned here, in addition to the other piece of 
testimony, before recited as a specimen of Payne's corrobor- 
ation, and that of Mr. Kimball, the jailer, to give the reader 
some idea of the impression likely to have been made by the 
whole evidence as it was given on the stand, and also to 
show the utter recklessness, not to say mendacity, with which 
these manufacturers of public opinion have performed their 
most unworthy labor. 

And I now cheerfully submit, to every reader of these 
pages, that even this sketch of but a small portion of the testi- 
mony against these defendants, goes very far towards a verifi- 
cation of the opinion expressed, by a constant attendant on 
the trial, when the District Attorney announced that the tes- 
timony for the government was closed. Said the gentleman 
referred to — " Of all the criminal trials which 1 have attended, 
where the evidence, as here, was, for the most part, circum- 
stantial, and where the trial resulted in the conviction of the 
accused, I cannot recall one, in which I think the testimony 
for the govenwient was so perfectly conclusive as in this 
caseJ^ 

But when the District Attorney — whose characteristic 
urbanity, candor and fairness, had been so strikingly manifest 
during the whole progress of the trial, as to elicit commenda- 
tion from all parties — after a most eloquent, vivid and thrill- 
ing description of the scenes enacted at Eastern Point, on the 
night of the fire — proceeded to the analysis and application 
of the evidence in the case ; and as, with great perspicuity, 
consummate skill, and constantly accumulating force, he 
argued the guilt of the defendants from the fact, that up to that 
moment, suspicion had pointed to no other known person as 
the author of the crime, and that every body's suspicions 
were at once directed to these defendants — from the nature of 
the crime, as throwing light upon the question by whom it 
was committed — the motives which these men had for its 
perpetration — their direct threats, so clearly proved — their 
opportunity for its commission — their sleeping together for 
the first and last time in their lives, on that night — their con- 
duct after the fire — their own statements — the positive proof 
furnished by the confession of Ross and the testimony of 
Payne — and, finally, the utter failure of the attempt, on the 
part of the defence, to prove an alibi — as the evidence ap- 
plicable to these topics respectively, was brought to the 



17 

notice of the jury, it seemed as if, at every successive step in 
this admirably arranged and most powerful argument, the 
conviction of the guilt of the defendants, produced by the 
testimony as given on the stand, waxed stronger and deeper 
to the very close of this masterly address of the District At- 
torney. And I believe I express the sentiment of very many 
others, when 1 affirm that, when the Attorney resumed his 
seat, had I been in the place of either of these defendants, 
and without reason to doubt the fidelity to the oath of God 
upon him, of any one of the twelve jurors who were soon to 
pass between me and the Commonwealth, even though con- 
sciously as innocent of the crime charged upon me, as any 
of their panel, I should have felt, in my mmost soul, that 
nothing short of miraculous interposition could procure for 
me, as the result of their deliberations, any other verdict than 
that of Guilty. 

I cannot take leave of these would-be forgers of a public 
sentiment, which never did and never can, coexist with a 
knowledge of the facts in this case, without noticing some 
portions of a letter from one of their number, to the editors of 
the Traveller, and which I find in their issue of March 16th. 
The question of the guilt of these defendants, and indeed of 
that of any resident at Eastern Point, is, by this writer, thus 
summarily disposed of: — "Your article, m Thursday's paper, 
in reference to the incendiary case at Gloucester, is calculated 
to mislead the public as to the origin of the fire, as any one, 
unacquainted with the people residing in the neighborhood 
of Mr. JNiles, would conclude, after reading your article, and 
learning that there were difiadties of long standing hetiveen 
Mr. Niles arid his neighbors, that the fires were set by some 
of them, out of revenge upoti him." How perfectly gratuitous 
this attempt to guard the readers of the Traveller against a 
conclusion so unlikely to be drawn, even by the merest novice, 
from such premises! But if any of the readers of that jour- 
nal were stupid enough to suff'er themselves to be thus mis- 
led by such groundless conclusion — and all doubts, if doubt 
they liad, as to the perfect innocence, not only of Marshall 
and Ross, but of every man, woman and child, resident at 
Eastern Point — must have been at once annihilated, on their 
perusal of the oracular announcement contained in the next 
brief sentence, in this most remarkable letter, viz: " There 

IS NOT THE LEAST GROUND FOR ANY SUCH SUSPICION." AlaS ! 

the sad waste of precious time, and of the money of the 



18 

Commonwealth, in that protracted' investigation, continued 
through sixteen days — all on a wrong scent — because this 
" Second Daniel" didn't sooner " come to judgment ! " And, 
then, what work for repentance — nay, perhaps, what food for 
remorse, is furnished, by this — too tardy — revelation to the 
magistrates and counsel who had charge of the preliminary 
investigations — to the learned judge who tried the cause — 
the jury, whose verdict is now known to be false — and 
" though last, not least," to the District Attorney, by whose 
able conduct of the cause, the jury were led " to believe a 
lie!" 

One more extract from this guardian of the press, and of 
those innocent dwellers at Eastern Point, shall suffice : — "The 
article in the Gloucester Telegraph, from which you have con- 
densed your remarks, was doubtless well intended, and is in the 
main a correct history of the difficulties with Mr. Niles ; but the 
editor did not perceive that it was calculated to carry abroad 
a wrong impressioji, by connectmg the burning of the barns 
with the previous troubles between Mr. Niles and his 
neighbors." 

I am aware that — 

" Many a flower is bom to blush unseen, 
And waste its sweetness on the desert air." 

But if, Messrs. Editors of the Telegraph and Traveller, now 
that this second Solomon, hitherto perhaps "to fame unknown," 
but who, having given such abundant proof of his matchless 
ability to benefit his fellow men, should never more be 
suffered to "hide his talent in a napkin" — if you, gentlemen, 
cannot assure your readers, that you have secured the valuable 
services of one who has given, to you and them, ocular 
demonstration of his superior qualification for the office of 
supervisor of the press generally, and your journals in 
particular, then be not surprised, if your patrons, henceforth 
— one and all — in perusing, at least, your editorials — find 
themselves constantly tortured with misgivings, lest — for want 
of those services, of the value of which you and they have 
such convincing proof — they should again be made the 
victims of such erroneous conclusions — groundless suspicions 
and false impressions, as those into which, in this instance, 
your heedlessness has betrayed them ! 

But, jesting aside — I challenge the production of another 
example— in any language — in which there shall be found 



19 

— within the same compass — such an amount of unblushing 
impudence conjoined with so much of intensified imbecility, 
as characterize this most absurd and senseless attempt to 
pervert the truth, and deceive honest men. " Not the least 
ground for any such suspicion " — " calculated to carry abroad 
a wrong impression hy connecting the burning of the barns 
with the previous troubles between Mr. Niles and his 
neighbors ! " 

" Oh! shame, where is thy blush?" 

That any sane man, living, as this writer does, at Gloucester, 
and knowing, as he must know, the numberless personal annoy- 
ances suffered by Mr. Niles previously to the fire, the injuries 
to his property, the repeated attempts to subject him to seri- 
ous, if not fatal accident, and especially the uttered threats, 
which created, and kept alive for weeks the harrowing appre- 
hension of the destruction of his buildings by the incendiary's 
torch, and of personal violence to himself, compelling him to 
provide for himself, and, in his absence, for his family also, 
weapons of defence ; and that suspicion pointed always and 
07ily to the two men now convicted of the crime of barn- 
burning, and such confederates as might be willing to aid in 
the execution of their hellish plot — I say, that any sane man, 
knowing all this, should be able to concoct and deliberately 
commit to paper, and this with a view to its publication, such 
arrant nonsense and flagitious perversion of the truth, as are 
contained in the extracts from this letter, must be deemed, 
and taken to be, a new and most striking exemplification of 
the maxim — " truth is stranger than fiction." 

It is, certainly, matter of gratulation, that all the machina- 
tions that have been employed, by these defendants and their 
friends, to defeat the ends of justice, by screening the guilty, 
and letting the " wicked go unpunished," have hitherto been 
defeated, through the distinguished ability and unflinching 
fidelity of those engaged in originating and conducting this 
prosecution, the wisdom, patience and firmness of the Court, 
and the intelligence and persistent endurance of a jury, who 
will ever be honored and gratefully remembered by all, in this 
community, who can appreciate the blessing of a sense of 
security in the hours of slumber, against the horrors of a 
midnight conflagration, kindled by some demon in human 
shape, who, either for purposes of plunder, or to glut savage 
revenge, is willing thus to put in jeopardy the precious lives 



20 



014 079 275 5- 



of a whole sleeping household ! And when these convicted 
defendants, having rejoiced, for a few weeks more, in their 
experience of the benefit of the " law's delay," shall have 
pronounced upon them the sentence of impartial justice, "all 
the people shall say, amen." 



iv 



LIE 



